Kinloch v Her Majesty's Advocate (Scotland)

Police observation of a person’s movements in public does not, without more, interfere with the right to respect for private life under article 8. The question is fact-sensitive and turns principally on whether the person had a reasonable expectation of privacy.

Irregularly obtained evidence is not automatically inadmissible at common law. Evidence obtained in breach of article 8 does not necessarily render its use at trial incompatible with article 6. The lawfulness of obtaining evidence and the fairness of using it are distinct questions governed by different tests.

The appellant was convicted of money-laundering after police officers observed his movements in public and recovered substantial sums of money. The surveillance had not been authorised under the Regulation of Investigatory Powers (Scotland) Act 2000. His devolution minute alleged that the surveillance infringed article 8 and that the resulting evidence was inadmissible.

The sheriff refused the minute and leave to appeal, considering himself bound by Gilchrist v HM Advocate. Leave was refused at both appeal sifts, but the Appeal Court subsequently permitted an appeal to the Supreme Court without giving reasons.

The Supreme Court questioned whether the minute raised a devolution issue because it concerned police conduct rather than an act of a member of the Scottish Government. It nevertheless considered whether the observation infringed article 8 and whether the Lord Advocate’s use of the resulting evidence was incompatible with article 6.

1. The appeal was dismissed unanimously. Lord Hope delivered the judgment, with which Lady Hale, Lord Mance, Lord Kerr and Lord Reed agreed.

2. The devolution minute, taken on its own terms, did not raise a devolution issue under paragraph 1(d) of Schedule 6 to the Scotland Act 1998. Police officers are public authorities for the purposes of the Human Rights Act 1998, but they are not members of the Scottish Government. A question about the compatibility of their conduct with Convention rights therefore falls outside paragraph 1(d). The Supreme Court also has no original jurisdiction over a Convention issue which was not before the High Court of Justiciary. With considerable hesitation, however, the court heard the additional issue because the Crown had not opposed leave on jurisdictional grounds, the Appeal Court had granted leave, and the intended challenge concerned the admissibility ruling in Gilchrist v HM Advocate. Devolution minutes must state the issue they intend to raise.

3. Irregular acquisition of evidence does not by itself make the evidence inadmissible at common law. Nor does acquisition in breach of article 8 necessarily make its use at trial incompatible with article 6. The lawfulness of an interference with private life must be distinguished from the fairness of using the evidence at trial. The applicable tests and remedies differ.

4. The police and the Lord Advocate perform constitutionally separate functions. Any infringement arising from the acquisition of evidence would be attributable to the police. For section 57(2) of the Scotland Act 1998, the relevant act was the Lord Advocate’s act of leading the evidence.

5. Whether surveillance interferes with private life depends on the particular facts and circumstances. Private life is broad, and a zone of private interaction may exist in public. Nevertheless, observation in a public place does not, without more, engage article 8 where the person has no reasonable expectation of privacy. The appellant’s movements between buildings and vehicles occurred openly in places visible to neighbours, passers-by and anyone watching. Recording those movements covertly over several hours did not infringe article 8. Gilchrist v HM Advocate was rightly decided on that issue.

6. Because the asserted article 6 incompatibility depended entirely on establishing an article 8 infringement, it also failed. No coercion or trickery capable of raising a separate question about trial fairness was alleged.

1. United Kingdom Supreme Court: Dismissed the appeal. It held that the public observation did not infringe article 8 and that leading the evidence was not incompatible with article 6.
2. High Court of Justiciary, Appeal Court: Granted leave to appeal to the Supreme Court without giving reasons. The second-sift panel had earlier refused leave, agreeing that the sheriff was bound by Gilchrist v HM Advocate.
3. Sheriff Court at Glasgow: Refused the devolution minute and leave to appeal. Following a trial before another sheriff, the appellant was convicted of money-laundering offences.